IJAZ AHMAD, J.---Through this constitutional petition, the petitioner impugns the orders dated 24- 12-2011 and 12-5-2012 passed by the learned Guardian Judge/Senior Civil Judge, Rawalpindi and the learned Additional District Judge, Rawalpindi respectively, dismissing the application of the petitioner made under section 25 of the Guardians and Wards Act, 1890 and the appeal preferred by him.
2. The petitioner claims to have fathered a female child Fatima Siddiqui born on 13-2-2005 by Farzana Naheed. The latter left the new born child with the petitioner and disappeared. She later on made an application under section 491, Cr.P.C. For the recovery of the child. The ' child was handed over to Farzana Naheed vide order dated 1-3-2005. The petitioner filed a constitutional petition. He then opted to withdraw it and made an application under section 25 of the Guardians and Wards Act, 1890. The application was contested. Issues were framed. The parties led evidence. The application was dismissed. The appeal met the same fate through the impugned orders.
3. It is contended by the petitioner in person that he and respondent No,1 Farzana Naheed were never married to each other. In fact, there was a contract between the petitioner and respondent No,1, the latter agreeing to act as a surrogate mother of the prospective baby against a huge consideration. Respondent No,1 has no right over the child or entitlement for her custody; that any Nikahnama if entered was not signed by the petitioner, the name of the groom does not read Farooq Siddiqui and the alleged signature was not made by him. It barely reads Farooq; that the petitioner is an American citizen. A child fathered by him has a right to be brought up, groomed, educated and medically treated in United States instead of languishing in Pakistan; that the welfare of the minor also demands that the custody of the child be handed over to the petitioner and that the petitioner professes the Shia sect of Islam and after attaining the age of 7 years, the custody vests in the father.
4. After arguing the case at some length pressing his preferential right vis-a-vis the respondent- mother, the petitioner opts to constrict his right on the sole ground of being the only person having the right of custody of the minor as the respondent was only a surrogate mother having rented her uterus for implantation of a fertilized egg in her womb.
5. I have heard the petitioner in person and have also gone through the record.
6. The petitioner had earlier made an application for the custody of the minor. It was finally dismissed. The appeal preferred by him was also dismissed by the learned Additional District Judge Rawalpindi vide order dated 2-11-2010. This second application being not competent, could not be proceeded with.
7. The petitioner primarily rested his case on his financial affluence as he is a Surgeon in the United States and the respondent, he alleges is a tramp who rented her uterus. The basic question to be resolved is whether the petitioner is the father of the child or not. He denies the marriage, asserts that the Nikahnama does not bear his name or the signature. His claim for custody of child as father is taken away by his own denial of marriage. He does not take a stance that he himself transplanted the fertilizer egg into the womb of respondent No,1 . He asserts that it was the third person who did it. The petitioner did not produce that third person in the witness box. The case of surrogation is not proved. The law of land does not recognize the surrogation. Even if the surrogation is recognized by the law of the land and the transplantation of a fertilized egg is proved, there is no evidence that the sperm that fertilized the egg, originated from the petitioner.
Thus the petitioner has no right over the child not born in consequence of a lawful marriage. Whom shall the custody be given in the circumstances? The respondent claims to be a legally wedded wife of the petitioner. The petitioner denies the claim. The entry of abridged' name of groom, Farooq instead of Farooq Siddiqui in Nikahnama was a smart move of petitioner to enable him to own or disown the marriage as it suited him in the changing circumstances. The case in hand is a peculiar case where a person, wants all the apples in his basket. He craves for a baby. He marries but enters his abridged name in nikahnama lest he may loose some of his wealth to the poor bride. In case of straight surrogation he fears he might lose the heaven. In both the situations, whether the marriage is established or nut, the child belongs to the bed. An adulterer may be convicted and punished but the custody of the child will go to the mother who housed the fetus for nine months. All that is sure is that the baby was born to the respondent. Her motherhood is undeniable. The petitioner whether he is or is not, the father of the child through marriage or the source of the sperm that fertilized the egg, has no right to the custody of the minor girl. , Both the Courts below have legally refused the petitioner, custody of the minor child. Even otherwise, the poverty of mother does not disentitle her for the custody of the child. She is already, as the petitioner contends, financially deprived a person. Another deprivation of the custody of child cannot be allowed to multiply her woes. Reliance is placed on (2004 SCM R 821) "Mst Razia Bibi v. Riaz Ahmad and another",
8. For what has been discussed above, this petition is devoid of any merit. It is hereby dismissed.